June 28, 2019

Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))

https://www.beynensonlaw.com/case-law/jcc-med-p-c-v-hereford-ins-co-2019-ny-slip-op-51100u/

Court: Appellate Term, Second Department
Decided: June 28, 2019
Citation: 2019 NY Slip Op 51100(U)
Posture: Trial
Outcome: Insurer prevailed
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

Jcc Med., P.C. v Hereford Ins. Co., 2019 NY Slip Op 51100(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary. At a nonjury trial limited to medical necessity, the claim and denial forms were admitted, and the parties stipulated to the peer review doctor's expertise as a board certified internist. The doctor testified that the services lacked medical necessity; the provider called no witnesses. The provider then failed to meet its ultimate burden of proving medical necessity by a preponderance of the evidence. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, dismissing the second, third, fourth, sixth and eighth causes of action.

Reported in New York Official Reports at Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

JCC Medical, P.C., as Assignee of Joseph, Remy, Appellant,
against
Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Goldberg, Miller & Rubin (Harlan R. Schreiber of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew S. Borrok, J.), entered March 16, 2017. The judgment, insofar as appealed from, after a nonjury trial, dismissed the second, third, fourth, sixth and eighth causes of action.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to whether the services at issue were medically necessary. The trial court entered into evidence the claim forms and denial of claim forms, and the parties stipulated to the expertise of defendant’s peer review doctor as a board certified internist. The doctor testified that the services provided by plaintiff lacked medical necessity. Plaintiff rested its case without calling any witnesses. Plaintiff appeals from so much of a judgment entered March 16, 2017 as dismissed the second, third, fourth, sixth and eighth causes of action.

Since defendant sufficiently rebutted the presumption of medical necessity (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), we find no basis to disturb the Civil Court’s finding with respect thereto (see Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50937[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the judgment, insofar as appealed from, is affirmed.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 28, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Upheld dismissal after trial because the insurer's peer review doctor's testimony rebutted the presumption of medical necessity and the provider, calling no witnesses, failed to prove necessity by a preponderance of the evidence.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co. (2012 NY Slip Op 22200) FollowedMedical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents.
Dayan v Allstate Ins. Co. (2015 NY Slip Op 51751(U)) FollowedA provider bears the ultimate burden of proving medical necessity after the insurer rebuts the claim form's presumption at trial.
Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co. (2017 NY Slip Op 50937(U)) FollowedThe provider failed to prove that spinal surgery was medically necessary after the insurer rebutted the presumption of necessity.

Similar decisions

Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))An insurer bears the initial burden at trial of rebutting the presumption of medical necessity that attaches to a claim form.
Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary.
James J. Kim, L.A.C., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50587(U))A provider bears the ultimate burden of proving medical necessity by a preponderance of the evidence at a no-fault trial.
Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))The insurer failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action.
Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))The provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion.